Dee v Commissioner of Police, NSW Police & Anor (No 2)

[2004] NSWADT 168

CITATION:	Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Rachel Dee FIRST RESPONDENT Commissioner of Police, NSW Police SECOND RESPONDENT Barry Lalonde
FILE NUMBER:	031005
HEARING DATES:	8-10/09/2003, 21/11/2003, 6/02/2004
SUBMISSIONS CLOSED:	03/18/2004
DATE OF DECISION:	08/16/2004
BEFORE:	Behrendt L - Judicial Member; Alt M - Non Judicial Member; McDonald O - Non Judicial Member
APPLICATION:	Sex Discrimination - In work - Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Police Act 1990
CASES CITED:	Aleksovski v AAA Pty Ltd (2002) EOC ¶93-219 Allders International Pty Ltd v Anstee & Ors [1986] EOC ¶92-157 Boyle v Ishan Ozden & Ors (1986) EOC ¶92-165 Caton v Richmond Club Limited [2003] NSWADT 202 Dee v Commissioner of Police & Anor [2003] NSWADT 217 Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 Font v Paspaley Pearls (2002) EOC ¶93-232 Spencer v Dowling [1997] 2 VR 127 Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 Hill v Water Resources Commission (1985) EOC ¶92-127 Hopper v Mt Isa Mines Ltd & Ors (1997) EOC ¶93-879 O’Calligan v Loder(No.2) [1983] 3 NSWLR 89 Shellharbour Golf Club v Wheeler [1999] NSWSC 224 Webb v Newcastle Hire Cars Pty Ltd & Ors [2004] NSWADT 142 X v Y & anor [2000] NSWADT 122
REPRESENTATION:	APPLICANT K Eastman, barrister FIRST RESPONDENT S Winter, barrister SECOND RESPONDENT A Gibian, barrister
ORDERS:	1. That the Respondents pay the Applicant $20,000 as damages for breach of s.22B of the Anti Discrimination Act 1977; 2. That First Respondent pay the costs of Applicant and Second respondent for hearing date of 6 February 2004 as agreed or, if not agreed, in accordance with the Legal Profession Act 1987

1 During the period of the complaint, Ms Rachel Dee, the applicant, worked for NSW Police, the first respondent, at the Newcastle Police Communications Unit as a Radio Communications Officer.

2 Mr Barry Lalonde, the second respondent, was also employed as a Radio Communications Officer at the Newcastle Police Communications Unit during the same period.

3 Section 8(1) of the Police Act 1990 makes it clear that it is the Commissioner of Police who has the management and control of NSW Police. Section 8(2) gives the responsibility to the Commissioner for the effective, efficient and economical management of the functions and activities of NSW Police. The Commissioner of Police was at all material times Ms Dee and Mr Lalonde’s employer, as per s.84 of the Police Act 1990.

Ms Dees Complaint of 13 December 1998

4 On 13 December 1998, Ms Dee lodged a complaint with her supervisor, Sergeant Bruce Kimber, claiming that Mr Lalonde had been touching her inappropriately. She claimed to Sgt. Kimber that Mr. Lalonde had, on various occasions, massaged her shoulders and rubbed her arms and legs. She requested anonymity in regard to the handling of her complaint.

5 Sgt. Kimber spoke to Mr Lalonde that evening when the latter arrived at work. Sgt. Kimber gave evidence that he had spoken to Mr Lalonde and had outlined the allegations made against him. Sgt. Kimber did not name Ms Dee as the complainant but said in evidence that he did inform Mr Lalonde at this time that intimate touching and verbal exchanges were not acceptable in the workplace.

6 Mr Lalonde gave evidence that he recalled that Sgt. Kimber told him that a female staff member had made a complaint about his behaviour. He recalled being told by Sgt. Kimber that the substance of the complaint was that he had said something inappropriate to another staff member and that she had taken it the wrong way. Mr Lalonde said that he had responded to Sgt. Kimber by stating that the person must have been new and “did not understand the way we joke around here.” Mr Lalonde commented in his evidence that there was a culture within the Communications Unit where employees told jokes to each other and acted in a familiar way towards each other. Mr Lalonde confirmed that he was not told who had made the complaint about him.

7 Sgt. Kimber reported Ms Dee’s complaint to Inspector Campbell on 13 December 1998. He claimed that in his briefing he requested that Inspector Cox contact the Police Equity and Diversity Branch.

8 Sgt Kimber also filled in a form for the Equity and Diversity Branch. There was no follow up of the complaint by the Equity and Diversity Branch.

9 Inspector Cox circulated a memo to all staff at the Communications Unit on 14 December 1998. This memo reminded staff of their rights and responsibilities in terms of the Sexual Harassment Policy. The memo was titled “Sex Based Harassment will not be Tolerated by the Management of this Centre” and it stated:

“Apart from creating additional unnecessary stresses within the workplace it is also a serious breach of Police Service Policy and the NSW Anti-Discrimination Act.”
The memo also stated that all complaints of harassment would be investigated, that anyone making a complaint would be supported by the management and encouraged staff observing improper behaviour to report it.

10 All staff, including Mr Lalonde, signed the memo to show that they had read it.

11 Sergeant Kimber informed Ms Dee of the action that had been taken in relation to her complaint and asked if she wished to take the matter further. Ms Dee stated that she was happy with the action taken so long as the conduct stopped.

12 On 6 January 1999, Sergeant Kimber submitted a report on the incident to Inspector Campbell, Centre Manager, Newcastle Police Communications Unit. In that report, Sergeant Kimber stated that: “the male staff member has been spoken to and counselled unequivocally regarding appropriate behaviour in the workplace.” The briefing also noted that the complainant did not wish to participate in a formal inquiry and did not wish to receive a complaints kit.

13 Ms Dee gave evidence to the Tribunal that Mr Lalonde’s offending behaviour did stop for a period of time but resumed again in February 1999. Ms Dee claimed at this time that Mr Lalonde resumed massaging her shoulders as she sat at her console. Ms Dee gave evidence that, at this time, Mr Lalonde had said to her:

“You do not mind me massaging you, do you?”

She said that he was not expecting an answer.

14 Ms Dee also said that, during this period, as she was arriving on her shift and Mr Lalonde was leaving, he gave her a full body hug that included upper body and groin touching.

15 Ms Dee further complained that in April 1999, when she was in the kitchen at work, Mr Lalonde approached her from behind and put his arms around her which was full body contact including his groin touching her buttocks. She cites this incident as the impetus for her complaining once again to Inspector Campbell about Mr Lalonde’s behaviour, which she did on 29 April 1999. She claims that he said to her words to the effect:

“How’s my baby?” or “How’s it going, babe?”

16 Mr Lalonde gave evidence that he was not aware during this time that it was Ms Dee who had made the complaint about his behaviour. He believed that he had a familiar and sociable relationship with her and told the Tribunal of an instance during those months when Ms Dee had offered to give him a hug. He agreed that he had massaged Ms Dee’s shoulders but had believed that this was always done with her consent. He said that he gave massages to other female staff members and this was always with their consent and in front of all other staff.

17 Mr Lalonde also explained that he often had to get the attention of staff who were wearing headsets so that they could hear radio broadcasts and who had their backs to the room. This meant that he would have to stand behind staff members and touch them to get their attention.

18 Mr Lalonde denied touching Ms Dee’s thighs and arms with his fingertips. He denied saying:

“You do not mind me massaging you, do you?”

19 Mr Lalonde denied ever saying to Ms Dee:

“How’s my baby?”

20 Mr Lalonde claimed that he does use the expression “How’s it going, babe” as he is Canadian and this is a common colloquialism there. He says that he may have used this expression when speaking to Ms Dee but did not say it in the context that Ms Dee claimed.

21 Mr Lalonde also denied giving Ms Dee full body hugs and denied pressing his body against hers. He asserted that his body from his groin to his shoulders had never touched Ms Dee. He denied grabbing her from behind.

Ms Dee’s Complaint of 29 April 1999

22 On 29 April 1999, Ms Dee again complained of Mr Lalonde’s conduct. She spoke to Inspector Campbell and states that she expressed her concern at this meeting that it must not have been explained clearly to Mr Lalonde that his behaviour was inappropriate in the workplace. Inspector Campbell replied that he had explained this clearly to Mr Lalonde.

23 Ms Dee gave evidence to the Tribunal that she, at this time, approached Mr Lalonde herself and told him that she felt uncomfortable about his touching her. She claims that he asked her whether she was upset about it and that she replied that she did not want him to touch her again. Ms Dee claims that Mr Lalonde then told her that he would stop touching her.

24 Mr Lalonde gave evidence that the conversation between Ms Dee and himself was different to the version presented by Ms Dee. He claimed that Ms Dee had told him that she was not bothered by his behaviour but that people had remarked about them hugging and had asked what her husband would think. Mr Lalonde says that he replied that he would not want to embarrass her so would stop his behaviour.

25 On 3 May 1999, Inspector Campbell spoke to Mr Lalonde in relation to the complaint.

26 Inspector Campbell told Ms Dee that he had informed Mr Lalonde that he was not to touch anyone in the workplace and that a handshake was the limit.

27 Mr Lalonde recalled that Inspector Campbell had directed him during this conversation that he was to avoid physical contact with staff and to revert to handshakes in appropriate circumstances. Mr Lalonde had explained that he sometimes needed to get the attention of staff who sat with their backs facing the room while listening on headsets to radio transmissions. Inspector Campbell informed Mr Lalonde that he was not to touch any person at all and that he had to get their attention by other means.

Ms Dee’s Complaint of 18 July 1999

28 On 18 July 1999, Ms Dee claimed that as she was walking past Inspector Campbell’s office, Mr Lalonde walked towards her and grabbed her in a full hug that included touching on the upper body and groin area. She claims that he said to her:

“While no-one is looking.”
Ms Dee made a note in her diary of the incident and asked a colleague, Mr Lister, to sign her entry.

29 Mr Lalonde recalled the incident but said that he had walked past Ms Dee and that they had embraced by touching arms. He claimed that the physical contact was minimal and that he had said, as a joke:

“Not while anyone is looking.”
Mr Lalonde was still not aware that it was Ms Dee who had lodged the complaints about him and did not think that his comment was offensive.

30 On 8 September 1999, Ms Dee, through her husband, contacted Inspector Campbell at home and informed him of the incident of 18 July 1999.

31 On 14 September 1999, Ms Dee made a statement to Detective Dixon from Newcastle Local Area Command about the incident for the purposes of a criminal investigation.

32 On 24 September 1999, Detective Dixon and his colleague Detective Steele interviewed Mr Lalonde. Mr Lalonde claims that this is when he first became aware that it was Ms Dee who had made complaints about his behaviour.

33 On 26 September, Ms Dee said that she was informed by Inspector Campbell that it would be necessary for Mr Lalonde to be in the office at the same time as her that day because he had rostered duties to perform. Ms Dee claims she was distressed to see him at the Centre on the same shift as her.

34 On 29 September 1999, Inspector Campbell issued a memo to the Communications Staff of the Radio Operations Unit in Newcastle regarding Sex Based Harassment. It stated that:

“Sex Based Harassment is a serious breach of Police Service Policy and the NSW Anti Discrimination Act. People who choose to engage in this type of behaviour create additional and unnecessary stress in the workplace. All complaints of Sex Based Harassment will be thoroughly investigated and appropriate action taken.”
The memo told staff that anyone making a complaint would receive the full support of the management and encouraged staff to report improper behaviour. It did not, however, define what sexual harassment was or give examples of what kind of conduct constituted sexual harassment.

35 On 8 December 1999, Inspector Campbell informed Ms Dee that her complaints had been investigated. He stated that he thought that the interviewing process would have been traumatic for Mr Lalonde and an arrangement was already in place where they were not on the same shifts and that this arrangement would be reviewed in a year. He also said that Mr Lalonde would have to sign an agreement in relation to workplace practices and that this matter would be marked on his work record.

36 Ms Dee claimed that, despite these arrangements, she still on occasion encountered Mr Lalonde at work when there was a change in shifts.

37 On 23 December 1999, Ms Dee lodged a complaint of sexual harassment with the Anti-Discrimination Board under the Anti-Discrimination Act 1977. Her complaint covered the period from July 1998 to July 1999. Section 88(3) of the Anti-Discrimination Act 1977 requires a complaint to be lodged within six months of the contravention. However, the President of the Anti-Discrimination Board has discretion to extend that timeframe and on 28 November 2002, he advised the parties that he had accepted the aspects of Ms Dee’s complaint that were out of time.

38 On 8 March 2000, Mr Lalonde was asked to attend an interview as a preliminary inquiry in relation to the sexual harassment allegations made by the complainant. The investigation was undertaken by Janet Vairy, Local Area Manager, Tuggerah Lakes Local Area Command.

39 On 6 April 2000, a report of findings as a result of the inquiry was made. The NSW Police found that Mr Lalonde had not sexually harassed Ms Dee but that he had intentionally disobeyed or intentionally disregarded a lawful order. Mr Lalonde received a reprimand.

40 Mr Kerry Harrison, the Roster Clerk and the Newcastle Police Communications Unit, became Mr Lalonde’s Peer Support Officer in October 1999. He gave evidence that many of his colleagues would express affection towards each other with “quick hugs” and that he had occasionally observed employees giving each other massages and that there was, within the Unit, a culture that was jovial. He did note that after the allegations were made by Ms Dee, that culture changed.

41 Ms Dee’s colleagues – Mr Mark Lister, Radio Communications Officer, Heather Porter-Kay, former Radio Communications Officer, Glenn Gilford, Radio Communications Officer – all gave evidence to the Tribunal that they had observed Mr Lalonde touching or massaging Ms Dee’s shoulders during the period of July 1998 to July 1999.

42 Inspector Campbell gave evidence to the Tribunal that he had last received training in the handling of sexual harassment complaints in 1997. Since the current policy came into force in February 1998, he had not been given any training in the operation of the policy and complaint procedures. Inspector Campbell also gave evidence to the Tribunal that only those in supervising positions were given training in occasional workshops but that the general staff had not been given this training.

43 Ms Dee complains that the behaviour of Mr Lalonde between the period of July 1998 to July 1999 amounted to sexual harassment and sex discrimination, prohibited by the Anti-Discrimination Act 1977 for which Mr Lalonde and NSW Police are liable. She asserts that she made a series of complaints to her supervisors – Sergeant Kimber and Inspector Campbell – but that Mr Lalonde’s offensive behaviour did not stop.

44 Mr Lalonde denies that he sexually harassed Ms Dee. He claims that, although he did massage her shoulders, he only did so with her consent. He did not know that the memoranda relating to sexual harassment related to him or his behaviour towards Ms Dee.

45 NSW Police deny that Mr Lalonde behaviour amounts to sexual harassment and sex discrimination. NSW Police also asserts that, since massaging cannot be considered sexual, it could not constitute sexual harassment. Further, NSW Police denies liability for any sexual harassment of Ms Dee by Mr Lalonde. They assert that section 53 does not extend vicarious liability for actions of sexual harassment that fall with s22A. Secondly, they claim that they did all that they could to prevent the harassment from occurring, including directing Mr Lalonde not to sexually harass Ms Dee, and so are able to rely on the defence set out in s.53(3).

Findings

46 The Tribunal finds that, during the period complained of by Ms Dee, Mr Lalonde did massage her shoulders and give her hugs and we accept her evidence that she did not like it. Mr Lalonde admitted to the massaging. Ms Dee provided evidence from co-workers who had witnessed Mr Lalonde’s behaviour to support her claim that Mr Lalonde would massage her and had attempted to hug her. Ms Dee was consistent in her claims, had complained several times about the behaviour and appeared as a credible witness. Mr Lister, who gave evidence to support Ms Dee, also appeared credible. On the balance of probabilities, the Tribunal accepts Ms Dee’s claim that Mr Lalonde massaged her, gave her hugs, including hugging her from behind and when passing in the hallway. We further find that Ms Dee did not welcome this behaviour.

47 The Tribunal also finds that Mr Lalonde was not aware that Ms Dee did not welcome his massaging and hugs. We accept that he had to touch people to get their attention during the course of their work – Inspector Campbell supported this claim in his evidence – and we accept, on the balance of probabilities, that he did not know that the staff memoranda that were circulated regarding sexual harassment referred to his behaviour with Ms Dee. Mr Lalonde appeared to the Tribunal to be genuinely surprised that his behaviour could constitute sexual harassment and he appeared genuinely surprised that Ms Dee did not welcome his touching and hugging her. We accept Mr Lalonde’s evidence that was supported by his peer support person, Mr Harrison, that there was a culture of co-workers joking, hugging and touching within the Newcastle Police Communications Unit.

48 Section 22B(2) of the Anti-Discrimination Act 1977 states that it is unlawful for an employee to sexually harass a fellow employee. Section 22B(6) of the Anti-Discrimination Act 1977 makes it unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.

49 Section 22A of the Anti-Discrimination Act 1977 defines the term “sexual harassment” and states:

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

50 The conduct that has been found to be of a sexual nature and to constitute harassment covers a wide range of behaviours including touching, comments about a person’s body, appearance and clothing. Hooper v Mt Isa Mines Ltd (1997) EOC ¶93-879. Uninvited massaging has been considered to constitute sexual harassment. X v Y & Anor [2000] NSWADT 122.

51 The test for whether conduct constitutes sexual harassment is not whether the complainant feels it is sexual harassment or whether the respondent intends it to be sexual harassment. Rather, the test is an objective one that requires the finder of fact to ask whether a reasonable person would consider that the conduct in question would be likely to offend, humiliate or intimidate. Caton v Richmond Club Limited [2003] NSWADT 202.

52 The Tribunal finds that Mr Lalonde’s behaviour in rubbing Ms Dee’s shoulders and giving her hugs over the period from July 1998 to July 1999 was offensive, humiliating and intimidating; it constituted sexual harassment. This is so even though Mr Lalonde was under the erroneous impression that Ms Dee consented to or did not object to his actions. Massaging, will in some contexts, not amount to sexual behaviour, but it is an intimate form of touching and, especially between a man and a woman, has sexual overtones. In the whole of the circumstances in this case, the massaging can be seen as a pretext for engaging in physical contact. In the circumstances of this case, the behaviour was sexual in nature. Ms Dee did not consent to that behaviour and it was unwelcomed by her. A reasonable person in Mr Lalonde’s position, having regard to all of the circumstances, would have anticipated that a person in Ms Dee’s position would be offended, humiliated or intimidated even though there was a culture of touching in the workplace. On the evidence before the Tribunal, Mr Lalonde’s actions constituted sexual harassment of Ms Dee.

53 Ms Dee alleged sexual harassment in her claim to the Anti-Discrimination Board, she also claims that the conduct of Mr Lalonde constituted sex discrimination. Although not articulated in her original claim to the Anti-Discrimination Board, it is not necessary that the complainant identify the particulars of the complaint. This matter was considered in Dee v Commissioner of Police & Anor [2003] NSWADT 217. There, at paras 6-8, the Tribunal held the following:

6. The Tribunal receives its jurisdiction from the complaint referred to it by the Board under s.94(1). The Tribunal cannot consider complaints that go beyond the parameters of the original complaint contained in the President’s Report. The initial complaint must allege a contravention of the Anti-Discrimination Act 1977 but “it need not allege the relevant facts with the particularity of an indictment or pleading” ( Langley v Niland [1981] 2 NSWLR 104 at 107). Particularly where Applicants are unrepresented, the Tribunal can allow the Applicant to pursue complaints that are articulated in the complaint to the Anti-Discrimination Board even if the specific breach of the section of the Act breached are not identified.

7. This requires the Tribunal to consider the ambit of the allegations made by the Applicant within the President’s report to form a view as to whether there is reference to a complaint that can be seen to constitute a breach of the Act even though the Applicant may not have specified the section breached.

8. The Tribunal considered the complaint made to the Board by the Applicant on 23 December 1999. The applicant clearly states, when asked what type of lawful discrimination that she suffered, that she believed that the conduct was “sex discrimination”. There is therefore evidence within the original complaint to give the Tribunal jurisdiction to consider sex discrimination. It remains to be seen whether the Applicant is successful in proving a complaint of sex discrimination.

54 While the actions of Mr Lalonde can be found to constitute sexual harassment, it does not automatically follow that they constitute sex discrimination. It is true that in some circumstances the finding of sexual harassment has been found to be a form of sex discrimination. O’Calligan v Loder(No.2) [1983] 3 NSWLR 89. However, this is in situations where the work environment produced by the harassment can be sufficiently pervasive to affect adversely the terms and conditions of employment. Hill v Water Resources Commission (1985) EOC ¶92-127. To show that sex discrimination has occurred the elements of sex discrimination still need to have been made out by the complainant. It may be that the existence of sexual harassments assists in making that case but it will not be enough in and of itself.

55 Section 25(2)(a) of the Anti-Discrimination Act 1977 makes it unlawful for an employer to discriminate against an employee on the ground of sex in the terms or conditions of employment which the employer affords the employee.

56 Section 24(1)(a) defines sex discrimination in the following way:

A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of sex if, on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex.

57 Only an employer can breach s.25 of the Anti-Discrimination Act 1977 by discriminating against an employee. When an employer did not personally discriminate, vicarious liability may attach to them through section 53. For a claim of sex discrimination to be made out, Ms Dee would have to establish that Mr Lalonde’s behaviour caused her to suffer discrimination in the terms and conditions of her employment on the basis of her gender. This also requires her to show that she was treated less favourably than a male in the same circumstances.

58 The Tribunal must be satisfied that sex discrimination occurred on the balance of probabilities and it is a burden that the applicant, Ms Dee, must discharge. Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3.

59 Mr Lalonde did not rub the shoulders of his male colleagues and did not give them full body hugs. His conduct affected the conditions of Ms Dee’s employment as she was made to feel uncomfortable, humiliated and anxious as a result of Mr. Lalonde’s behaviour. This created an unpleasant work environment for her in a way that her male colleagues were not subjected to.

60 Ms Dee has shown that the actions of Mr Lalonde that constituted sexual harassment were sufficiently pervasive to adversely affect the terms and conditions of her employment and therefore has met the standard of proof required to make out a claim of sex discrimination and she has also shown that NSW Police engaged in sex discrimination in the manner prohibited by s.25 of the Anti-Discrimination Act 1977.

Vicarious Liability

61 Vicarious liability for sexual harassment extends to employers under s.53 of the Act. It states:

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

62 Section 53(3) provides a defence to vicarious liability. It states:

Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

63 NSW Police claims that vicarious liability under section 53(1) does not extend to cover responsibility for sexual harassment prohibited by s.22A(2) and s.22A(6). They argued that those sections would have no work to do if it was intended that s.53 were to impose liability for complaints of sexual harassment by one employee against another.

64 The Tribunal rejects the argument that vicarious liability does not extend to the employer for actions of sexual harassment under s.22A(2) and s.22A(6). Section 53(1) explains what work it has to do when it states that an “act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also…” (emphasis added). There is nothing here to imply that there is no extension of this provision to s.22A(2) and s.22A(6) other than the defence contained in the remainder of s.53(1), namely that, “unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.” The other defence to vicarious liability is contained in s.53(3) and requires that the employer took “all reasonable steps to prevent the agent or employee from contravening the Act.”

65 The onus of proving the defence to vicarious liability in s.53(3) falls on the employer. Shellharbour Golf Club v Wheeler [1999] NSWSC 224. In order to invoke that defence, NSW Police needs to show that it “took all reasonable steps to prevent” Mr Lalonde’s actions.

66 Mr Lalonde did not appear aware that his behaviour constituted sexual harassment. In fact, he considered his behaviour normal and was part of the culture within the Newcastle Police Communications Unit.

67 The memo circulated to staff by Acting Supt. Cox on 14 December 1998 informed staff that sexual harassment would not be tolerated. It noted that such behaviour added stress in the workplace and was a serious breach of Police Service Policy and the NSW Anti-Discrimination Act. It stated that all complaints of harassment would be investigated, that anyone making a complaint would be supported by the management and encouraged staff observing improper behaviour to report it. It did not, however, define sexual harassment or give examples of what might constitute sexual harassment.

68 Similarly, the memo circulated to the Communications staff on 29 September 1999, while emphasising that Sex Based Harassment was a serious breach of Police Service Policy and the NSW Anti Discrimination Act and would not be tolerated, did not explain what “Sex Based Harassment” was or what behaviour constituted sexual harassment.

69 For staff members like Mr Lalonde who did not understand that their behaviour was offensive, and in fact saw his behaviour as simply part of the ‘culture’ of the workplace, neither of these memoranda went far enough to explain what sort of behaviour constituted sexual harassment. Mr Lalonde gave evidence that he did not believe that the first memo circulated was as a result of his behaviour or specifically directed towards him.

70 Inspector Campbell, the Centre Manager of the Newcastle Police Communications Unit, last received training in the handling of sexual harassment complaints in 1997. He had also given evidence to the Tribunal that only those in supervising positions were given training in occasional workshops but that the general staff had not been given this training.

71 There is no doubt that members of NSW Police took the complaints of Ms Dee seriously. Sgt Kimber acted on Ms Dee’s first complaint immediately. Inspector Campbell followed the third complaint with a criminal investigation of Mr Lalonde’s behaviour. But this concern and the actions that Ms Dee’s superiors took to deal with her complaints were ineffectual and not sufficient to end the sexual harassment Ms Dee suffered because there had not been adequate education of the staff to understand and handle complaints of harassment.

72 Even though the criminal investigation did not proceed because there was not enough evidence to substantiate a complaint, this does not mean that there was no breach of the sexual harassment provisions of the Anti-Discrimination Act 1977. There is a different standard of proof between a criminal and a civil matter.

73 After the criminal investigation, an investigation was undertaken under the Public Sector Management (General) Regulation 1996. That investigation cleared Mr Lalonde of sexual harassment but he was charged with failure to obey a direction to avoid physical contact with co-workers. This finding acknowledges inappropriate behaviour on the part of Mr. Lalonde in that he disobeyed a direction not to touch his fellow co-workers but that the behaviour itself did not amount to sexual harassment. It is also, of course, open to the Tribunal to find that Mr Lalonde’s behaviour did amount to sexual harassment even though NSW Police came to a different conclusion.

74 It is not enough that policies prohibiting harassment and for making complaints exist or that the policies of the employer would not authorise the conduct that constitutes sexual harassment. Hill v Water Resources Commission (1985) EOC ¶92-127; Hopper v Mt Isa Mines Ltd & Ors (1997) EOC ¶93-879. The policies, Gender based and Sexual Harassment Policy and A Guide to Making an Equity Complaint, both dated January 1998, were submitted to the Tribunal to show that NSW Police had such policies in place.

75 But it has been recognised that it is incumbent upon employers to adequately inform their staff of those policies. In Aleskovski v AAA Pty Ltd [2002] FMCA 81, it was stated that:

“the policies in relation to sexual harassment be clear and placed in written form and communicated to all members of the workforce. In addition to that it is generally considered that continuing education on sexual harassment should be undertaken.” (Emphasis added)

76 There was enough evidence before the Tribunal to infer that educational and training programs were not given to staff at the Newcastle Police Communications Unit, even after the Equity and Diversity Unit became aware of the complaints. Not even when the policies relating to sexual harassment were updated were staff trained about their content.

77 To avoid vicarious liability as a result of the defence set out in s.53(3), the procedures and practices must be of an adequate standard and the onus is on NSW Police to discharge it. It must show that it has taken all reasonable steps to prevent contravention of the Anti-Discrimination Act 1977. Caton v Richmond Club Limited [2003] NSWADT 202.

78 With the evidence before the Tribunal of the lack of awareness by employees and training of staff and management on sexual harassment, we find that NSW Police has not discharged this burden. Particularly because staff members like Mr Lalonde were of the belief that the culture of the workplace permitted his behaviour, it was incumbent upon NSW Police to ensure that its staff clearly understood what constituted sexual harassment. Without training of staff and supervisors, it is difficult to assert that NSW Police has taken all reasonable steps to prevent breaches of the Anti-Discrimination Act 1977.

79 Despite their endeavours, NSW Police is vicariously liable for the sexual harassment Ms Dee experienced from Mr Lalonde. It has failed to meet the standard of proof required to show that reasonable steps were taken to provide a defence to s.53 and is therefore liable for Mr Lalonde’s actions.

Damages

80 Section 113 of the Anti-Discrimination Act 1977 provides the Tribunal with the power to make an award of damages when a breach of that act has been established. This award can include compensation for economic and non-economic loss. Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503. There, Wilcox J noted that the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult:

“...damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant’s relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage.” (at 543)

81 Ms Dee’s treating psychologist of three years, Roger F. Peters, submitted a report to the Tribunal, in which he had diagnosed her as having suffered from “a chronic level of Adjustment Disorder with Anxious and Depressed Mood”. Mr Peter’s linked this condition to Ms Dee’s reaction to Mr Lalonde’s actions. Mr Peter’s reports contained many assertions of fact about the allegations made by Ms Dee about Mr Lalonde that were speculative. However, in the evidence given to the Tribunal he stated that he had offered counselling to Ms Dee to deal with her disorder and therefore did not turn his mind to what caused her distress; rather, he focussed on trying to alleviate her condition.

82 Mr Peter’s also gave evidence that there existed a wide range of factors – including the type of work that Ms Dee was engaged in at the Newcastle Police Communications Unit – that could have caused the stress disorder from which Ms Dee suffered. Mr Peters also gave evidence that many of the sessions he had with Ms Dee were attributable to a car accident in which she had been involved in September 2000 and that had caused her a great deal of pain. This meant that, in viewing the whole of his evidence, no clear causal link could be made, on the balance of probabilities to link Ms Dee’s Adjustment Disorder with Anxious and Depressed Mood to the actions of Mr Lalonde that amounted to sexual harassment. This precludes the condition being included as part of Ms Dee’s damages.

83 However, Ms Dee did show that Mr Lalonde’s actions constituted sexual harassment and that she was distressed by his behaviour. The evidence was that Mr Lalonde’s offending behaviour occurred over a period spanning from July 1998 to July 1999.

84 Ms Dee claimed economic loss on the basis that she was unable to work overtime as a result of her having to work different shifts to Mr Lalonde. There was no evidence to back up this assertion. Ms Dee had also claimed that she had lost a higher duties loading but this was for a period that ended before Ms Dee went on sick leave. Without clear evidence as to the actual decrease in her income as a result of Mr Lalonde’s actions and without clear evidence of the specific opportunities that Mr Lalonde’s behaviour denied her, it is difficult for the Tribunal to calculate economic loss.

85 While the economic loss Ms Dee suffered is not clear, she had consistently expressed her distress and embarrassment about his behaviour to her superiors and at one stage to Mr Lalonde and this supports her claim for general damages.

86 Although Mr Lalonde’s behaviour caused Ms Dee stress, his actions did not create a basis for aggravated damages. These are only awarded in limited circumstances where the behaviour that amounted to an act of discrimination is high handed, malicious, insulting or oppressive. Spencer v Dowling [1997] 2 VR 127. Aggravated damages are compensatory so must be linked to hurt, humiliation or distress caused by the offending behaviour and cannot be given for hurt, distress and humiliation that has already been compensated by an award of general damages. Mr Lalonde’s behaviour was a result of his lack of awareness that the massaging and touching of Ms Dee was inappropriate and unwanted. He certainly was not malicious or vindictive in his actions towards her. Ms Dee has shown that Mr Lalonde’s behaviour did constitute sexual harassment and that she was hurt, humiliated and distressed be it. However, this has been compensated for in her claim for general damages.

87 Ms Dee also established that the conduct that amounted to sexual harassment also constituted sex discrimination. It does not automatically follow that Ms Dee is entitled to two awards of damage. Damages are awarded to ensure that an aggrieved person is compensated for losses incurred as a result of the breach. In Ms Dee’s case, both breaches of the act occurred as a result of the same conduct and, from the evidence, the loss she suffered as a result of the sexual harassment covers the loss she suffered from sex discrimination and is the total quantum that she is entitled to.

88 Accordingly, the Tribunal finds that the appropriate award of damages would be the sum of $20 000.

89 NSW Police and Mr Lalonde are, as per s.53(2) of the Anti-Discrimination Act 1977, jointly and severally liable for the damages awarded to Ms Dee.

Costs Order

90 This is not a jurisdiction that usually makes cost orders. It is in the public interest to ensure access to the Administrative Decisions Tribunal is not impeded by the fear of costs orders for unsuccessful claims.

91 However, section 88(1) of the Administrative Decisions Tribunal Act 1997 gives the Tribunal the power to make an order of costs but “only if it is satisfied that there are special circumstances warranting an award of costs.”

92 In these proceedings, NSW Police had submitted a bundle of documents and not engaged with the cross-examination of any of the main witnesses for Ms Dee. It proceeded with this appraoch through the first three hearing dates on 8-10 September 2003. The hearing did not conclude on the allocated days and another hearing date was set for 21 November2003 with the anticipation that the matter would be concluded on that day. On the morning of the 21 November hearing date, NSW Police announced that it would call Inspector Campbell to give evidence and a further hearing date of 6 February 2004 had to be set down.

93 The Tribunal informed the parties at that time that it would consider applications on the issue of costs for the additional hearing date of 6 February 2004.

94 It is also in the public interest to ensure that parties are able to run their case in the manner in which they think best puts forward their evidence.

95 Inspector Campbell, as the Centre Manager of the Newcastle Police, was in a key position to give evidence to the Tribunal about the circumstances in the Communications Unit. He was able to provide evidence to the Tribunal of the steps that the NSW Police took to investigate and deal with Ms Dee’s complaints about Mr Lalonde’s behaviour. NSW Police informed the Tribunal at the November hearing date that Inspector Campbell had been overseas during the September hearing dates.

96 However, the failure of NSW Police to call him as a witness earlier meant that the case was prolonged and that both Ms Dee and Mr Lalonde incurred additional expense and stress.

97 In balancing the right of NSW Police to put forward their evidence against the inconvenience to the Tribunal, Ms Dee and Mr Lalonde as a result of not calling Inspector Campbell until the November hearing date, the Tribunal has decided that NSW Police should pay Ms Dee and Mr Lalonde’s costs for the 6 Febraury 2004 hearing date.

Orders

1. That the Respondents pay the Applicant $20 000 as damages for breach of s.22B of the Anti Discrimination Act 1977 .

2. That First Respondent pay the costs of Applicant and Second respondent for hearing date of 6 February 2004 as agreed or, if not agreed, in accordance with the Legal Profession Act 1987.